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Selective Enforcement and Fictitious Stash Houses: Important Third Circuit Case

Last week, in United States v. Washington, the Third Circuit held that selective enforcement claims against law enforcement officers are not subject to the insurmountable discovery standard that has long thwarted selective prosecution claims. This opinion is the product of a nationwide effort to challenge the racially selective use of fictitious stash house stings.

These stings permit the government to script its enforcement practices to trigger harsh mandatory minimums. Troublingly, Columbia Law School professor Jeffrey Fagan has found powerful evidence that the government selectively targets people of color for these sting operations. As we have previouslywritten, the University of Chicago Law School’s Federal Criminal Justice Clinic (FCJC) is working with attorneys nationwide to challenge this discriminatory practice.

With Washington, these attorneys scored an important victory. Professor Alison Siegler, Director of FCJC, offers this writeup:

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I’m writing to note a truly groundbreaking aspect of United States v. Washington, 2017 U.S. App. LEXIS 16395 (3rd Cir. Aug. 28, 2017), which will help federal defenders and CJA attorneys around the country who are seeking discovery regarding selective law enforcement. Washington dramatically extended the en banc Seventh Circuit’s holding in United States v. Davis, 793 F.3d 712 (7th Cir. 2015), a stash house case that was litigated and argued by my clinic.

In our Davis case, the Seventh Circuit went to great lengths to distinguish selective law enforcement claims from the selective prosecution claim in United States v. Armstrong, 517 U.S. 456, 465 (1996), holding, “Unlike prosecutors[,] . . . [a]gents of the ATF and FBI are not protected by a powerful privilege or covered by a presumption of constitutional behavior,” 793 F.3d at 720, and concluding, ”In sum, the sorts of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations,” id. at 721.

In Washington, the Third Circuit joined the Seventh Circuit in drawing a distinction between the two types of claims: “[T]he special solicitude shown to prosecutorial discretion, which animated the Supreme Court’s reasoning in Armstrong and Bass . . . does not inevitably flow to the actions of law enforcement . . . .” Washington, 2017 U.S. App. LEXIS 16395, at *44–45. But the Third Circuit took this distinction much further. Based on this distinction, the court relaxed its legal standard for defendants seeking discovery from law enforcement agencies, definitively eliminating two requirements that have made it virtually impossible for defendants to obtain discovery in the twenty years since Armstrong. Specifically, Washington eliminated both (1) the requirement under the discriminatory effect prong that defendants provide some evidence that law enforcement did not target similarly situated people of another race, and (2) the requirement that defendants provide some evidence of discriminatory intent. Id. at *48 (“Distinct from what is required under Armstrong/Bass, a defendant need not, at the initial stage, provide “some evidence” of discriminatory intent, or show that (on the effect prong) similarly situated persons of a different race or equal protection classification were not arrested or investigated by law enforcement.”).

At least in the Third Circuit, defendants seeking discovery no longer need to meet either of these onerous standards. This is an enormous development in the law of discovery for selective enforcement cases.

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You can read more about the FCJC’s collaboration with Federal Defenders and CJA attorneys in these selective enforcement enforcement cases here. (To date, the attorneys have twelve pending stash house cases, all of which have fully briefed motions to dismiss.)